Eleven years after the death of US activist Rachel Corrie, the Supreme Court on Wednesday heard the final round of arguments in the legal saga over whether Israel has responsibility for wrongful death.
The main issue at stake during the hearing was whether the area in the southern Gaza Strip where Corrie died was a combat zone, and therefore, whether the “combat activities exception” applied to absolve the state of responsibility as the Haifa District Court ruled in August 2012.
Haifa Judge Oded Gershon had said that Corrie, who was killed in disputed circumstances involving an IDF bulldozer on March 16, 2003, while protesting an IDF home demolition in Rafah, could have avoided the dangerous situation, and called her death a “regrettable accident.”
The combatant activities exception essentially says that a country’s armed forces cannot be held liable for civil damages for physical or economic harm to civilians in an area defined as a war zone.
The Supreme Court pressed the state on the issue, but expressed open skepticism about the Corrie family’s chances in its questioning of their lawyer, Hussein Abu Hussein.
Hussein said that the state had failed to produce a copy of the order declaring the area a closed military zone, despite Gershon basing his application of the combat activities exception on the idea that the IDF had declared the area such a zone.
Hussein had said in the appeal that the fact that the IDF did not undertake any criminal or administrative actions against the group of left-wing activists trying to block the bulldozers in the area showed that it had not been a closed zone.
With Gershon having also found that the area was a dangerous military area since soldiers had been attacked not long before by a grenade, Hussein had written that the grenade allegation could be disproved as well.
He had noted that none of the soldiers in the area remembered a grenade attack and that the only evidence was in an operations log, which he declared invalid if unsupported by any soldiers’ testimony.
Hussein also scrutinized the operations log, noting statements indicating that the IDF did not really believe that the area was dangerous or the bulldozing was alleviating military dangers, but rather that the bulldozing continued that day to make a point to the activists that the IDF would not let them interfere with bulldozing operations.
The court countered that maybe those IDF concerns were valid and that at any rate, the statement by itself, might not be nearly sufficient on appeal to overcome Gershon’s finding that the area was a combat zone.
The state vehemently defended Gerson’s finding that the area was dangerous and a combat zone.
According to Hussein, Gershon ignored international law principles in his ruling.
He said that whether Corrie belonged in Gaza or not, “there are no black holes in international law” – with the Supreme Court acknowledging that Gershon barely mentioned it in his verdict.
Hussein attacked Gerson’s decision on several other grounds, but none of them can get off the ground if he cannot overcome the combat zone issue, said the Supreme Court panel of Deputy President Miriam Naor, Justice Esther Hayot and Justice Zvi Zilberthal.
At the start of the hearing, the parties had several exchanges with the court about a separate lawsuit by the Corrie family against Prof.
Yehuda Hiss, the former chief pathologist at the L. Greenberg Institute of Forensic Medicine at Abu Kabir, the institute, the Rishon Lezion Magistrate’s Court and the state for allegedly mishandling Corrie’s autopsy.
Part of the allegations relate to Hiss taking body samples from many bodies he inspected, a group in which Corrie was allegedly included based on admissions by Hiss in the larger case against the state.
Corrie, 23, from Olympia, Washington, died when a bulldozer struck her during a protest by the International Solidarity Movement.
Corrie’s family filed the civil suit against the Defense Ministry in the district court seven years ago. They claim that the IDF either deliberately killed Corrie or is guilty of gross negligence.he IDF.